It’s finally here: Special bulletin clarifies EMTALA regulations

Use this tool to educate staff, administrators, managed care, physicians

Are you still having problems with managed care contracts conflicting with Emergency Medical Treatment and Labor Act (EMTALA) requirements? Finally, a special advisory bulletin has been published to clear up any misconceptions.

The bulletin was jointly issued by the Office of the Inspector General (OIG) in Washington, DC, and the Health Care Financing Administration (HCFA) in Baltimore in the Nov. 10, 1999, Federal Register. (See box for ordering information, p. 2.) It warned that you must not delay screening exam or stabilization, despite any prior authorization requirements by managed care organizations (MCOs).

Still, the burden of EMTALA compliance falls entirely on the hospital, not the MCO, stresses Charlotte Yeh, MD, FACEP, medical director of Medicare Policy at the National Heritage Insurance Co. in Hingham, MA. "Even though the OIG and HCFA would like to extend some of these requirements to the managed care side, they don’t have the statutory authority to do that," she says. (See story on managed care contracts, p. 5.)

The bulletin serves as a strong incentive for you to provide additional education about EMTALA, says Larry Bedard, MD, FACEP, former president of the American College of Emergency Physicians in Dallas and president of Bedard & Associates, a Sausalito, CA-based consulting firm specializing in ED management and EMTALA. "There is still a fundamental lack of knowledge about patients’ rights and our roles and responsibilities with EMTALA," he says. "ED managers across the nation should take a copy of this bulletin, give it to their medical staff and administrators, and conduct an educational program on EMTALA."

The bulletin serves two purposes, says Caral Edelberg, CPC, CCS-P, president of Medical Management Resources, an emergency medicine coding and consulting firm in Jacksonville, FL. "It assists hospitals in developing policies and procedures for staff that clearly delineate their responsibilities under EMTALA. It also puts Medicare and Medicaid managed care organizations on notice that their common practice of requesting prior authorization is illegal. At long last, the OIG and HCFA have provided the necessary clarifications in this area."

Here are key points in the bulletin:

Obtaining payment authorization before the medical screening exam and onset of stabilization is a violation.

This is the most important clarification in the bulletin, says Bedard. "It’s now very clear that hospitals cannot make arrangements with MCOs to do prior authorizations, which has been going on for some time."

You cannot obtain financial responsibility forms before the patient is stabilized.

If interpreted strictly, this will force hospitals to re-examine the entire ED registration process, says Yeh. "That’s because in many EDs, routine registration involves finding out financial responsibility at the same time the patient is signing consent for treatment," she says. "But it’s pretty clear from this report that is not considered permissible behavior."

You don’t have to wait until the end of stabilization to ask for payment authorization.

"You can ask for authorization of payment once stabilization has commenced, so that is a major point of confusion that is now clear," says Yeh.

You may ask about insurance, but only if it doesn’t delay care.

Asking if a patient has insurance is considered to be part of the reasonable registration procedure, Yeh explains. "Now it is more clear that you may ask whether or not an individual is insured, as long as your query does not delay screening and treatment."

However, if any hospital staff member initiates a discussion with a patient about an MCO’s prior authorization requirements, and it delays the medical screening exam, it is a clear violation of EMTALA, she warns. "So this is a strong incentive for hospitals to have educational programs for their staff about EMTALA."

There are specific requirements for Medicaid and Medicare MCOs.

The bulletin stressed that although EMTALA doesn’t apply to MCOs, there are other regulations that ban prior authorization, such as the Balanced Budget Act (BBA). "Under the BBA, the MCOs must pay based on the prudent layperson standard," Yeh notes. "So you can use that information as support, if you experience any difficulties with managed care plans." (See story on managed care and dual staffing, below right.)

Only staff who are knowledgeable about EMTALA should answer financial questions from patients.

Any question about payment for ED services must be answered by someone who understands EMTALA requirements, says Yeh. "You need to make sure that the patient is aware that irrespective of their ability to pay, the hospital stands ready and willing to provide medical screening and stabilization treatment if needed." For example, a patient might say, "I want to get an X-ray because my back bothers me, but my primary care physician refuses to do this. How much does it cost?"

Now you can have that discussion, but only if you first explain that patients have a right to a medical screening exam and stabilization treatment regardless of their ability to pay, Bedard says.

Your ED will have to demonstrate to HCFA surveyors that there is a staff person knowledgeable about EMTALA on duty at all times, Yeh advises.

You must document voluntary withdrawal.

If patients refuse treatment, you need to document three things, according to Yeh:

— The patient was offered an exam and treatment.

— The patient was informed of specific benefits and specific risks.

— All reasonable steps to obtain a written informed consent were taken.

If a patient leaves and doesn’t tell anyone, document that the patient arrived and the time it was discovered that the patient left without being seen. "Not everybody takes as much care as they should to record when they’ve identified that a patient has left," she says. "Make sure you retain all those records."

Long waits could be considered an EMTALA violation.

The bulletin warns providers not to develop a pattern of encouraging patients to leave without treatment, which could be an attempt to remedy long waits. "We are waiting to see how HCFA is going to be enforcing this, since they are saying that waiting times could be an indicator of encouraging patients to leave without being seen," Yeh says. "It’s basically a warning to EDs to take a good look at their waiting times."

You can contact a patient’s physician at any time to seek advice about medical care.

Although you can’t request authorization for payment until after the medical screening exam is completed, there’s no problem with contacting a patient’s physician at any time to get information about the patient’s medical history. As long as you don’t withhold or delay any portion of the medical screening exam, you shouldn’t hesitate to contact a patient’s physician. "They didn’t want people to be afraid to call," Yeh explains.

ED staff were concerned that if they called the physician, and during the course of the conversation the topic of reimbursement came up, it could be interpreted that the purpose of the call was for payment authorization, Yeh says. "But if you document clearly that you called the primary care physician for medical information that will help you to care for the patient, it is not an EMTALA violation."

Larry Bedard, MD, FACEP, Bedard and Associates, 88 Prospect Ave., Sausalito, CA 94965. Telephone: (415) 332-1893. Fax: (415) 332-1894. E-mail: lbedard@ aol.com.

Caral L. Edelberg, CPC, CCS-P, Medical Management Resources, 9550 Regency Square Blvd., Suite 1200, Jacksonville, FL 32225. Telephone: (904) 725-4889. Fax: (904) 724-1948. E-mail: mmr@leading.net.

Charlotte Yeh, MD, FACEP, National Heritage Insur ance Co., Box 3033, Hingham, MA 02043. Telephone: (781) 741-3122. Fax: (781) 741-3211. E-mail: charlotte.yeh@eds.com.